Wednesday, 24 September 2008

The Courts, The Church and the Constitution

The Courts, The Church and the Constitution (Aspects of the Disruption of 1843),
Lord Rodger of Earlsferry, Edinburgh University Press, 2008.

The author of this interesting work is a former Lord President of the Court of Session and a Law Lord in the House of Lords. He was asked to give the inaugural series in 2007 of the Jean Clark Lectures, connected to the Foundation which she set up for the development of Scots Law.

Most people in the Free Church of Scotland are aware that several law cases preceded the Disruption of 1843 as the Evangelical party in the then Church of Scotland made several attempts to change the practices of the church. There are many books written from the Free Church point of view, such as Thomas Brown's Annals of the Disruption, Robert Buchanan's The Ten Years Conflict, and Peter Bayne's The Free Church of Scotland. Books critical of the Free Church's position were published at the time, although they have been largely forgotten.

Usually the information possessed by Free Church people as regarding what took place in the decadeprior to the Disruption has been received from writers of the Evangelical party who were involved in the disputes or from subsequent writers concerned to justify that outlook.Yet we recognise that there is often more than one way of looking at an event of crucial importance, and the author in this volume considers these legal cases from the viewpoint of the legal system, in particular the judges involved.

The book contains three lengthy chapters, each with a considerable number of helpful endnotes. Chapter one focuses on how the crisis in the Church of Scotland developed in the years prior to the Disruption, and considers why the Evangelical party concluded that the judges were failing in their duty to apply the various protections guaranteeing the independence of the Presbyterian Church from the state that were included in the Treaty of Union in 1707. Chapter two details the involvement of lawyers and judges in both sides of the church dispute, and assesses the response of the judges to what they perceived as the Church’s determination to resist their legal authority. Chapter three then examines subsequent legal disputes connected to the issue of church and state since then, including the 1900 Free Church case and the 2005 Percy case when a female minister in the Church of Scotland challenged the authority of the denomination to dismiss her.

The basic issue under discussion is the relationship of church and state, and in particular the extent to which the state can interfere with the decisions of a court of a Presbyterian church in Scotland. This particular matter is further complicated today by European laws and by a range of other laws that reflect the reality that Scotland is no longer a Presbyterian country (if one goes by church attendance). We can immediately think of the effects of human rights legislation among others.

As one who finds lawyers’ reports to be often incomprehensible and written in language understandable only to the initiated (a feature not confined to legal writings), I began to read this book with reluctance. Yet I was surprised how easy it was for the author to hold my attention as he guided me through the various stages of the several legal cases and explained what was taking place. His material is enhanced, at least for those interested in Free Church history, by several snippets of information connected to our past, both from 1843 and 1900. While the contents of the book will have interest for those involved in the legal profession, it is written in a style that is easy to read. In fact, the only negative comment I would make is the price (£30 for a 142 page large paperback).

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